Standing Committee D

[Mr. John McWilliam in the Chair]

Community Care - (Delayed Discharges etc.) Bill - Clause 6 - Dispute resolution

Simon Burns: I beg to move amendment No. 6, in
clause 6, page 4, line 41, leave out 'may' and insert 'shall'.

John McWilliam: With this it will be convenient to discuss: Amendment No. 19, in
clause 6, page 4, line 41, after 'Authority', insert 'and local authority'.
 Amendment No. 38, in 
clause 6, page 4, line 41, after 'Authority', insert 'and Social Services Authority'.
 Amendment No. 20, in 
clause 6, page 4, line 42, after 'Board', insert 'and local authority'.
 Amendment No. 39, in 
clause 6, page 4, line 42, after 'Wales', insert 'jointly'.
 Amendment No. 118, in 
clause 6, page 4, line 42, after 'Wales', insert 'in agreement with their local authority counterparts'.
 Amendment No. 18, in 
clause 6, page 4, line 42, leave out 'a' and insert 'an independent'.
 Amendment No. 21, in 
clause 6, page 5, line 3, leave out 'a panel' and insert 'an independent panel comprised, in equal proportions, of representatives from a Strategic Health Authority and from a local authority, with a wholly independent chairperson'.
 Amendment No. 22, in 
clause 6, page 5, line 4, leave out 'a' and insert 'an independent'.
 Amendment No. 23, in 
clause 6, page 5, line 5, after 'which', insert 'independent'.
 Amendment No. 77, in 
clause 6, page 5, line 8, leave out subsection (3) and insert— 
 '(3) Any NHS body or social services authority shall be prohibited from bringing legal proceedings against another such body in relation to a dispute under this Part before such steps have been taken in relation to a panel established by virtue of this section.'.
 Amendment No. 53, in 
clause 6, page 5, line 13,at end add— 
 '(5) Each independent panel shall publish annually the cost of dispute resolutions.'.

Simon Burns: The amendments deal with dispute resolution. One could claim that clauses 6 and 7 highlight our argument that the Bill will cause problems in developing relationships between local authorities, social services departments and the national health service. The Government have recognised that, and have established a dispute
 resolution to sort out the problems that may arise under the Bill. As everybody knows—except, possibly, the Minister—the Bill will introduce a system of fines for local authorities.

Paul Burstow: The hon. Gentleman makes an important point that, on everybody else's understanding, we are talking about fines. Has he noted that even the Secretary of State, in answer to questions yesterday, talked of fines?

Simon Burns: I am extremely grateful to the hon. Gentleman. He has anticipated a point that I was going to make. He was probably as perplexed as I was when the Secretary of State directly contradicted and undercut his own Minister in his statement in the House yesterday by saying that fines would be imposed under the Bill. It will be interesting to see whether the Minister can explain why she has, in effect, been wrapped over the knuckles for getting it wrong and seeking to mislead the Committee through the spin that she has put on the Bill. The Secretary of State has let the cat out of the bag—there will be fines, as Opposition Members have been arguing since the Bill's publication.

Phyllis Starkey: Will the hon. Gentleman give way?

Simon Burns: Yes.

Phyllis Starkey: I thank the hon. Gentleman—

John McWilliam: Order. I have not called the hon. Lady. Before I do, I remind the Committee that we are not dealing with clause 6. We are dealing with a group of amendments, and should stick to those.

Phyllis Starkey: I hope that my intervention will be in the spirit of your remarks, Mr. McWilliam. The hon. Gentleman is making a great play of the issue of fines. Is he against fines per se, or does he think that they are perfectly reasonable in some circumstances?

John McWilliam: Order. I hope that the hon. Gentleman will not go down that line; it is way wide of the amendments.

Simon Burns: As always, Mr. McWilliam, you are absolutely right. I was not going to be tempted by the hon. Lady's intervention, although I would be more than happy to give her my views outside the Committee, which would be a more appropriate setting.
 The amendments deal with the Government's proposal to establish dispute resolution panels under the auspices of strategic health authorities. That is curious because the proposed dispute procedure will ensure that the NHS acts as judge and jury in disputes that arise from the Bill. I am sorry that the hon. Member for Feltham and Heston (Alan Keen) is not here. He is the chairman of the all-party group on football, and the proposed procedure can be compared to the draw for a football match, except that one team will be allowed to decide who will win before anyone has even kicked the ball.

John McWilliam: Order. I have been thinking about the amendments. They cover the whole clause, so I shall treat this as a clause stand part debate.

Simon Burns: Thank you, Mr. McWilliam. That will assist us greatly.
 Most people who have read the Bill—except, I suspect, the Minister—will find it odd that the health service alone should be responsible for setting up panels. We strongly argue in the amendments that it should be put on an equal footing with local authorities. If panels are to consider disputes, the system should be seen not only to be working but to be fair. There will be doubts, however, among those who think that strategic health authorities have a vested interest in protecting NHS interests at the expense of local authorities. I hope that the Minister accepts that that is a dangerous road to go down. 
 If panels are to deal with disputes, people must feel confident that their dispute will be studied in an unbiased way, but the way in which the Government plan to set up the panels will not give that impression. That could lead to horrendous problems, and some people will feel that a panel has reached a view that does not coincide with their own simply because the NHS is protecting itself. That may not be the case, but it will be the perception among those who feel that a panel has come to the wrong decision. 
 Amendment No. 21 deals with the constitution of panels. It makes it clear that they must be independently comprised, with equal proportions of representatives from the health service and local authorities, and with a totally independent chairperson. Amendment No. 53 would introduce new subsection (5), which would add a requirement that each independent panel should 
''publish annually the cost of dispute resolutions.''
 We have to read the explanatory notes to get a better idea of how the Government envisage the panels working. We come again to the problem that has bedevilled the Bill, because much of the detail of how the panels will work will be set out in regulations, which we have not seen. In some ways, we are operating in the dark, because we have not seen the small print, which will set out exactly what the Government intend. The explanatory notes give us a clue. They say that 
''The panel's role is advisory and its recommendations are not formally binding, although it is hoped that the recommendations will be accepted in most cases.''
 That clears up part of the problem for organisations such as Help the Aged and Age Concern, which have been asking whether panels' recommendations will be binding or advisory. However, it does not clarify the purpose of the panels. 
 It seems odd that a panel's rulings will be advisory rather than binding and calls into question the validity of the procedures. What will happen if people do not accept their recommendations? Even though the panel's role is advisory, many will feel that the system is skewed in favour of the health service, and that the position of local authorities is undermined. I do not say that that will be so, but it will be the perceived view, particularly of those who are not satisfied with the advice or recommendations of a panel. I hope that the Minister will accept that what looks like an inherently unfair system of providing 
 help in disputes could undermine the concept. I trust that she will be prepared to think again and make the panels more fair by giving local authorities an equal say in their establishment, so that they are genuinely independent.

Patsy Calton: I am beginning to worry because, increasingly, I find myself wanting to support amendments tabled by the Conservative party. I never thought that it would come to that; it is a novel experience.
 It would be difficult to come up with a Bill that was more likely than this one to create antagonism between local authorities and health authorities. Amendments Nos. 6, 19, 38, 20 and 39 require the disputes panel to be a partnership between the health authority and the local authority. Together with amendment No. 118, and in the spirit of partnership, they would enable disputes to be settled through agreement with local authority counterparts, as an alternative to the lopsided situation in which strategic health authorities with an axe to grind have the ability to set up a panel—said to be advisory—that can dictate the outcome. That will necessarily lead to legal action.

Meg Munn: Opposition Members are making a meal of this. The idea is that an independent panel will consider disputes. Who appoints it is subject to regulation, which will include safeguards to ensure that it is not one-sided. There are many other similar circumstances—all that is needed is a simple, straightforward, effective appointments process.

Patsy Calton: I thank the hon. Lady for her intervention, but ''independent'' is not used in the Bill and would have to be inserted by amendment. In fact, the point of many of the amendments is to ensure the independence of the panel, so that it will not be as one-sided as the Government seem to want it to be. The disputes panels are supposed to resolve issues between two public bodies, but strategic health authorities are charged with establishing them. It is a given that disputes are likely arise about fines, rather than about patients, who seem to have been rather forgotten about.
 The Bill proposes a remarkably lopsided process. How can the body responsible for fining set up an independent panel? A recent case in the European Court of Human Rights, Salesi v. Italy (2001), makes it clear that statutory arrangements for the establishment of quasi-judicial administrative panels may breach article 6 of the European convention, unless they are independent of those whose decisions they review and compliant with the rules of natural justice. It is, therefore, important to ensure that the panel resolving the disputes is not unduly influenced one way or the other by financial considerations when reaching a decision. 
 It is manifestly unfair that the health service, which will be levying fines on local government under this legislation, should have sole responsibility for creating and maintaining disputes panels, as currently envisaged in clause 6. We are prepared to accept that the adjudications of those panels should be binding on all parties. I join the hon. Member for West 
 Chelmsford (Mr. Burns) in asking the Minister to explain what is meant by ''not formally binding''. Either something is binding or not. I am unsure what difference the word ''formally'' makes. At all costs, we must avoid endless legal proceedings that completely miss the point as far as the patient is concerned. The clause envisages the prospect of legal proceedings against local councils. What will happen to the patient in the meantime? That is hardly a recipe for seamless delivery and joint working. 
 Amendment No. 77, tabled by my hon. Friend the Member for Sutton and Cheam (Mr. Burstow), clarifies the impenetrable subsection (3) to ensure that legal proceedings are not entered into before the disputes resolution procedures have been utilised. I very much hope that the Government will take up that suggestion, which offers welcome clarification. I read the subsection to colleagues three times last night and had them rolling around the floor because it is so impossible to understand. [Interruption.] I challenge the Minister to read it out in public. In fact, it is interesting just how little reporting on the Bill there has been in the press.

Nigel Waterson: I am following the hon. Lady's argument closely, but I am afraid that if she spends a little longer in the House, she will find that that is true of almost every Bill.

Patsy Calton: It is true that I have been here for only a short while. I agree with the hon. Gentleman, however, because even after serving on only three Committees, I have discovered that it is true of most Bills. They do vary, and some are better than others, but this Bill is very poor indeed and will lead to all sorts of problems. My hon. Friend's amendment would make a big difference and I hope that the Government will take notice of it.
 Amendment No. 53 suggests that panels should 
''publish annually the cost of dispute resolutions''.
 That is entirely sensible, so we will support that amendment as well.

George Young: I want to speak to amendments Nos. 38 and 39 and, in passing, remind the Minister that this is the last day on which she can reply to the question that I have put to her twice, which is whether there is any precedent for the Bill. If I do not get a reply today, I will assume that there is no precedent in which one section of the public sector unilaterally imposes on another, in the absence of a mutually agreed contract, fines, incentive payments, reimbursement streams or whatever description she likes to apply to the regime.
 It is sad that we have to have this clause 6, given all the energy, bureaucracy and resources that will have to go into resolving disputes in a legalistic and mechanistic way. What has happened to partnership? That point was made by my hon. Friend the Member for West Chelmsford and the hon. Member for Cheadle (Mrs. Calton). Even in the clause, where you are setting up a dispute resolution procedure to 
''assist in the resolution of disputes''—

John McWilliam: Order. The Chairmen's Panel met yesterday, and we were directed by Mr. Speaker to ensure that proper order was kept in Committee. I am setting up no such thing. ''You'' refers to me.

George Young: I apologise for a momentary lapse of concentration, Mr. McWilliam.
 Even in the process of resolution of disputes, only one party is to be involved, with regulations made by each strategic health authority. It is important to focus for a moment on what those authorities have to do. In all regions, they are responsible for the allocation of resources in the county. In my case, the authority covers Hampshire and the Isle of Wight. It knows how hard-pressed the trusts and bodies beneath it are for cash, yet it will appoint the panel to resolve such disputes. 
 Against the background of the pressure on the trusts—on Tuesday, my hon. Friend the Member for Eastbourne (Mr. Waterson) told us of the pressure in Eastbourne, and I mentioned that the North Hampshire Hospitals trust in Basingstoke faced a deficit—there will inevitably be a suspicion that a panel appointed by the strategic health authority will find on the side of the health service rather than on that of the local authority. 
 I understand from ''Today'' that under the comprehensive performance assessment regime, Hampshire county council—it is Conservative controlled—is excellent. I entirely endorse that verdict. If it is a high-quality local authority, I do not understand why the regulations could not require the strategic health authority and, in my case, that county council to set up a panel to resolve disputes together. 
 In the absence of detail in the explanatory notes or the Bill, the Minister has an opportunity to say something about the constitution of the panel. If one takes an industrial relations tribunal as an example—this touches on something in an amendment tabled by my hon. Friend the Member for West Chelmsford—you have one representative of the employer and one representative—

John McWilliam: Order. I have no such thing.

George Young: I think that this is the first time that I have served on a Standing Committee before 10.30 am, Mr. McWilliam.

John McWilliam: Order. I understand the right hon. Gentleman's difficulty. Unfortunately, I do not have the same privilege, as I have chaired Standing Committees on a number of occasions before 10.30 am.

George Young: I shall make a conscious effort.
 On industrial relations matters, there are representatives of the employer and usually the trade unions, and an independent chairman. Other models such as rent tribunals have the same structure. It would help if the Minister could fill in a little more detail on subsection (2)(a), which is about 
''the constitution of a panel''.
 She could also tell us that, whatever may be in the Bill, the Government intend that where a panel is set up the strategic health authority will consult and try to agree 
 with the local authority, so that there is confidence in the panel. 
 The conclusions of the panel are advisory, not binding. If they are to have credibility and to carry weight, and if people are to feel committed to them, it is important that the composition of the panel should have people's confidence. With renewed apologies, Mr. McWilliam, for being out of order earlier, I suggest that the Minister now has an opportunity to respond to the doubts that have been expressed today and to give assurances. I see no reason why she should not accept some of the amendments. If all the language about partnership was true, we would at least know that disputes could be resolved in a way in which all the parties could have confidence, and not feel that the jury was weighted against them.

Jacqui Smith: When we consulted with NHS and social services managers about how the process would work, many of them, quite fairly and reasonably, were clear about the fact that they would resolve disputes between themselves—just as, when similar circumstances arise now, they are worked out between managers and organisations who, as professionals, put the needs of the individual at the centre of the way in which such matters are determined. However, the fact that that would be so in the vast majority of cases does not mean that there will not sometimes be occasions when we need a dispute resolution procedure.
 It seems to me perfectly reasonable and sensible that we should do the same as in other areas—for example, in relation to continuing care; I shall return to that example later. We should set up a sensible way of resolving disputes. Although, as my hon. Friend the Member for Sheffield, Heeley (Ms Munn) said, Opposition Members are making a bit of a meal of it, I hope that I can reassure them not only that this is a sensible approach to dispute resolution but that we will address some of the more sensible issues raised today about how to ensure that the disputes resolution process is fair. 
 We therefore suggest that a dispute panel should be established by each strategic health authority. They will be similar in nature to those already in existence, such as the continuing care panel—their decisions will impact on both the health service and local authorities—which previously were set up by health authorities and are now set up by strategic health authorities. In view of that precedent, we believe that they will be relatively easy to establish. It makes sense for the panel to sit in strategic health authorities because there is no equivalent strategic body for local authorities. That brings me to the contention of the hon. Member for Cheadle and what the Liberal Democrats and Conservatives believe should be an independent body to set up those panels. Are they suggesting that we should introduce a completely new national structure with a responsibility for setting up the panels? If not, they have a responsibility to say in which body should be vested the responsibility for 
 setting them up. We believe that it is quite reasonable, given their roles and given the precedent—

Simon Burns: I think that I can help the Minister. Our amendments clearly say that we want the responsibility for setting up the panels to be vested in strategic health authorities and the local authorities—both locally, as a joint working initiative.

Jacqui Smith: With respect, the hon. Gentleman is confusing what the membership of the panel might be with the legal duty to set it up.

Simon Burns: No, no.

Jacqui Smith: I think that you are—[Hon. Members: ''Oh.''] I apologise, Mr. McWilliam; I might be slightly better earlier in the morning than the right hon. Member for North-West Hampshire (Sir G. Young), but clearly I am not good enough.
 I hope that I shall be able to bring a little light to their day, but Opposition Members are confusing the distinction between the organisation that has the legal responsibility for setting up the panel and how that panel is constituted to make its decisions. Hon. Members therefore questioned whether strategic health authorities would be impartial in establishing dispute panels. They suggested that authorities would favour the NHS over local councils, but that is plainly nonsense. As their name makes clear, strategic health authorities are strategic bodies; they have a performance management function, which is one step removed from the day-to-day workings of the NHS. They are not, as I think the hon. Member for West Chelmsford suggested, responsible for claiming reimbursements from social services departments. As we discussed at some length on Tuesday, the responsible NHS body is the acute trust or, in certain circumstances, the PCT; in no circumstances is it the strategic health authority.

George Young: Does not the strategic health authority allocate the money to those bodies? It is therefore not a wholly neutral, disengaged partner.

Jacqui Smith: No, the strategic health authority does not allocate the money. Had the right hon. Gentleman attended the debate on the Floor of the House yesterday, he would have witnessed the Secretary of State allocating a historically large increase in NHS spending to primary care trusts, which will be responsible for commissioning.

Meg Munn: Perhaps Opposition Members' logic is that both the Government and the strategic health authorities should be involved. After all, the Government are partly responsible for allocating funds to local authorities.

Jacqui Smith: My hon. Friend tempts me to go down that track, but I will not do so this morning.
 The history of similar panels shows that it is sensible and logical for strategic health authorities to establish dispute panels. In addition, we intend that regulations will provide for panels to be composed of equal numbers of local authority and NHS representatives. Obviously, they will not come from the bodies in dispute. There will also be an independent chair. There is no reason to suppose that panels thus constituted would look more 
 favourably on the NHS than they would on local councils.

Paul Burstow: On that basis, will the Minister confirm that nominations to local authority places on panels will be solely at the discretion of the local authorities involved and that people will not be appointed by the strategic health authority?

Jacqui Smith: I am not sure that it is possible for the NHS or local authorities to exercise sole discretion, and there will need to be some assurance that people are not involved in the dispute. We will clearly need to consider those issues in regulations, but I think that I have given the Committee a pretty firm assurance that panels will have equal local authority and NHS representation and an independent chair.
 We also got on to subsection (3), which says pretty straightforwardly that public bodies cannot go to the courts until they have been to a panel. I hope that that explanation is clear enough for the hon. Member for Cheadle; it seems pretty straightforward to me. Under subsection (3), regulations will provide for bodies in dispute to take their cases to the dispute resolution panel before bringing legal proceedings. Although the panel's recommendations—like those of many such panels—will not be legally binding, the vast majority of disputing bodies will implement them, rather than take the dispute to court. Courts are understandably critical of people going directly to them without first trying other dispute resolution mechanisms. 
 The guidance on the continuing care panel recommendations says that they should be taken into consideration in all but exceptional cases. Again, they are not legally binding, but such a process generally works well. If those who are in dispute are still dissatisfied, they can take the dispute to court. However, it is likely that the court would want to know—understandably—that they had tried to settle the dispute before resorting to the court.

Paul Burstow: The Minister refers to the guidance in respect of continuing care. That guidance also refers to the fact that, for the duration of the review, the funding of the continuing care of the individual remains with the NHS. Would that be the case with the panels as well?

Jacqui Smith: As we discussed on Tuesday, if an individual was concerned about whether he needed continuing NHS care, not only would he have the right to stay in hospital but the responsibility would remain with the NHS during that period. We also discussed other circumstances in which different bodies would take on the funding responsibility.
 If we consider the details of the amendment, we should remember that in many cases, disputes can be settled between the staff concerned, or by managers. Social care disputes will not inevitably need to be referred to a panel, and guidance on the process will point out that, for reasons of both time and resources, it is desirable to create a system to encourage two public bodies to reach an amicable agreement rather than to have constant recourse to the panel. 
 Senior managers in both health and social services would want to resolve matters, whenever possible, without spending time on disputes. For that reason, I do not believe that amendment No. 53 is justified. Disputes will arise in only a minority of cases and many will be resolved without a panel. We know that to be the case from the experience of similar panels, such as continuing care panels. The costs in the case of dispute resolution panels can be expected to be low. While the continuing care panels investigate cases, in this instance the strategic health authority would maintain the panel and pay the costs of its members, but we would expect the disputing authorities to put their cases together and present them to the panel. Therefore, depending on how often the panel met, the overhead costs of panel members would be modest. 
 However, if informal attempts fail, it will be necessary to resolve disputes satisfactorily. It seems appropriate that the responsibility for setting up a panel should be vested in the strategic health authority. The intention is that the panel will be composed of local authority and NHS representatives with an independent chair.

Simon Burns: Who will appoint the independent chair?

Jacqui Smith: The appointments, subject to the regulations, will be administered and made by the strategic health authority, but I am willing to take on board the hon. Gentleman's concerns about independence and will consider how we guarantee that in the regulations which, like all regulations, will be subject to consultation. There is no reason to suppose that a panel would look more favourably on the NHS than on a local council. The regulations will also cover situations in which not all the bodies in the dispute are covered by the same strategic health authority or local authority. They will follow a simple rule, such as that the panel attached to the strategic health authority in whose area the hospital is situated will hear the dispute. That will also give the panel the chance to form a view if there is an ongoing problem with one hospital in the area.
 The clause does not affect the right of an individual to make a complaint to the NHS or social services under existing complaints procedures about care received using, or to take legal action.

Paul Burstow: Although it does not exclude the rights of the patient or the carer, can the Minister confirm whether the proposal would allow for representation of the patient's view in the discussions of the dispute panel? Do patients' views count? Can they be represented at a dispute panel meeting?

Jacqui Smith: In the vast majority of disputes about responsibility shared between a local authority and a responsible NHS body, it is likely that an individual's concerns would constitute a continuing care case, along the lines that I described earlier. I am willing to consider how, in cases in which it is appropriate for the views of the individual to be represented, we ensure through the regulations that that happens. Perhaps we can return to the matter on Report.
 We do not believe that amendment No. 77, which was tabled by the hon. Member for Sutton and Cheam, and to which the hon. Member for Cheadle 
 spoke, is necessary. The existing phrase, ''public authority'', already covers those public bodies that could be involved in a dispute about delays. It will, of course, be the NHS body or social services authority, but it is not necessary to state that. The second change in the amendment does not make sense. The removal of a reference to the regulations leaves us with no way to prescribe the details of what a panel must have done before a dispute can proceed to judicial review. 
 The situation is slightly different in Wales, where strategic health authorities do not exist and the local health boards will be the key components of the NHS structure below National Assembly level. If the system in part 1 of the legislation is introduced in Wales, the local health board could, in a few cases, be one of the parties to the dispute. Again, the regulations can provide that a local health board cannot sit in judgment on itself. The regulations will have to be in accordance with ECHR requirements. That picks up the point made by the hon. Member for Cheadle about human rights. Of course we shall ensure, as we have done throughout the Bill, that the regulations are in line with the necessary articles of the ECHR.

Paul Burstow: I thank the Minister for having given way so many times during the debate on this important set of clauses. Can she share with the Committee her reply to the Chairman of the Joint Committee on Human Rights, who recently wrote to her raising a number of concerns about the compatibility of the Bill with the Human Rights Act 1998?

Jacqui Smith: I am glad that we have returned to that, because I was confused on Tuesday, when the hon. Gentleman suggested that the JCHR had met on Monday. I understand that it did not have sufficient members to be properly constituted—

Paul Burstow: It has written, though.

Jacqui Smith: It is right that the JCHR has written to the Department raising some issues. However, they are not the points that the hon. Gentleman raised but quite specific points about the human rights issues relating to people in need of mental health care. I cannot promise that I shall be able to share the correspondence before the end of the afternoon, but I recognise my responsibility to reply to the JCHR and I shall do that.

Paul Burstow: When?

Jacqui Smith: I suspect before Report, if that makes the hon. Gentleman happier.
 Finally, I shall address the point raised on several occasions by the right hon. Member for North-West Hampshire about precedent for the reimbursement proposals in the Bill. We are saying that if one body has a responsibility for providing care and does not undertake that responsibility, it should reimburse the body that does.

Simon Burns: Be fined.

Jacqui Smith: I refer the hon. Gentleman to sections 21 and 29 of the National Assistance Act 1948, which determine the responsibility of local authorities for
 providing residential care. In this case, if a local authority provided accommodation for a person who, it was subsequently determined, was ordinarily resident in the area covered by another authority, both the guidance and common practice is that the reimbursement would be made to the authority that had provided that care and that had had responsibility all along, but not fulfilled that responsibility. That seems to be a clear analogy. [Laughter.] I am sorry to spoil the line of attack of the right hon. Member for North-West Hampshire by providing him with an answer. Nevertheless, I believe that I have done so. I hope that I have partly reassured Opposition Members and partly pointed out the faults in their amendments, and I hope that they will withdraw them.

Simon Burns: In certain areas, the Minister has sought to be helpful, and will possibly consider again in greater detail the important issues raised by the amendments—those tabled by Conservative Members and Liberal Democrats. What she said worried me, particularly on the issue of an independent chairperson. If I understood correctly, she said that she would consider the matter with a view to rectifying any defects in the regulations or making any improvements that she thinks are warranted.
 The trouble is that we do not know now what will be in the regulations. They will presumably be put out to consultation and laid before the House many months from now, when we will not have any genuine opportunity to influence them. It is unfortunate that we are leaving too much to the Minister's wishes—whim is the wrong word—and desires. She may wake up tomorrow and regret what she has said today, completely reverse her tendency, and move towards the Conservative party's position. Her present position surprises me, as I am convinced that the amendments are the right way forward. 
 The Minister suggested somewhat cruelly that we were confused. In fact, our amendments could not be clearer. I assure the Minister that there is no confusion among Opposition Members. We are seeking to ensure that the strategic health authorities and the local authorities are responsible for setting up the panels together, not the strategic health authorities alone, as provided for in the Bill. As I shall briefly reiterate, that is because we believe that the NHS will be seen to be unfairly influencing the operations of the panels, because they are set up under the auspices of the strategic health authority. It is quite clear that we want the panels to be comprised of representatives of the NHS and representatives of local authorities in equal numbers, with an independent chairperson. There can be no confusion about that: it is quite clear cut. In that respect, I am surprised that the Minister thinks that we are confused. I can assure her that there is no confusion. 
 Notwithstanding the hints that the Minister has given, I still think that she will consider certain matters that we have raised to see whether there is scope to improve the Government's ideas in the Bill through the regulations. However, that is too weak a commitment, because we will have virtually no influence on the regulations that finally emanate from her Department. What is more, unless we are 
 successful, and common sense prevails on later amendments, we will not be able to amend the regulations when they are produced, because the system does not work that way. There will not even be an affirmative resolution and therefore a guaranteed debate on the regulations. Despite the Minister's trying to be helpful, I fear that the commitment is too nebulous. For that reason, I ask my hon. Friends to join me in voting for amendments Nos. 6 and 21. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived. 
 Amendment proposed: No. 21, in 
clause 6, page 5, line 3, leave out 'a panel' and insert 'an independent panel comprised, in equal proportions, of representatives from a Strategic Health Authority and from a local authority, with a wholly independent chairperson'.—[Mr. Burns.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived. 
 Motion made, and Question put, That the clause stand part of the Bill.
The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to. 
 Clause 6 ordered to stand part of the Bill.

Clause 7 - Adjustments between social services authorities

Simon Burns: I beg to move amendment No. 12, in
clause 7, page 5, line 18, after first 'it', leave out 'it' and insert 'is'.
 I hope that I am not counting my chickens before they hatch, but I think that today may be a red-letter day for me. I have dealt with legislation for the Opposition for five and a half years. Over a series of Committees, the Government have strenuously resisted all my best endeavours to make them amend their Bills. No member of the Committee other than you, Mr. McWilliam, will have known the experience over 18 years. However, with this amendment I think that I have struck gold. 
 The amendment is important because the purpose of the Committee is to ensure that, even if we do not agree with the content of legislation, the Bill will at least be in the best condition possible when it becomes an Act, with minimal opportunities for misunderstanding or mistakes. I have spotted a mistake in subsection 1(a), which starts: ''it it uncertain''. That is of course gobbledegook, and the Minister would hate to support legislation that contained gobbledegook. 
 I hope that I am anticipating the Minister's intentions correctly—the debate will end in tears if she refuses the amendment—by suggesting that we take out the second ''it'' and replace it with ''is''. Notwithstanding the fact that the language in legislation is far removed from that in normal conversation, that change will clarify, improve and tighten up the Bill. I hope that the Minister will make my day and accept my amendment.

John McWilliam: It was not 18 years; it was 23.

Jacqui Smith: Notwithstanding what the right hon. Member for North-West Hampshire said, one obviously has to get up early in the morning to catch out the hon. Member for West Chelmsford. All I can say is that his oratory has persuaded me. I apologise to the Committee for the typographical error, and I will make the hon. Gentleman's day by accepting his amendment.

Simon Burns: I thank the Minister because she really has made my day. This is a fine parliamentary achievement, not only for myself, but for the glory that is reflected on the Opposition. Nothing gives me greater pleasure than to ask the Minister's hon. Friends to join me in putting the amendment on to the statute book—although that will cause great angst among her Back Benchers.
 Amendment agreed to.

Simon Burns: I beg to move amendment No. 44, in
clause 7, page 5, line 25, leave out paragraph (a).

John McWilliam: With this it will be convenient to take Amendment No. 45, in
clause 7, page 5, line 27, leave out paragraph (b).
 Amendment No. 46, in 
clause 7, page 5, line 29, leave out paragraph (c).

Jacqui Smith: The hon. Gentleman should not push his luck.

Simon Burns: The Minister says that I should not push my luck, and I take her advice. She will recognise that from the fact that the amendments are probing amendments.
 Although I am sure that the Minister will clarify matters, I am confused about the need for subsection (2). The clause deals with adjustments between social services authorities with particular regard to individuals who go out of a local authority area. I may be mistaken, but subsection (2) seems to duplicate some of the provisions of subsection (1). For that reason, I cannot see the need for subsection (2). I do not know whether it is something to do with the complicated legality of the situation, or the way that the Bill needs to be drafted so as not to leave any doubt or confusion. I would appreciate it if the Minister could explain why subsection (2) is necessary.

Paul Burstow: I support this group of amendments and the opportunities they present to probe certain aspects of the Government's thinking. Subsection (2) provides for situations in which it is uncertain which social services department is responsible for the partial assessment in clause 3(3) and (9). Paragraph (a) gives the Minister powers to stipulate by regulation the responsible department. The department will then carry out an assessment and apply its eligibility criteria under a clause 2 notice, and that is the issue that I want to explore a little further.
 A department may determine that a package of community care services should be made available to facilitate safe discharge. The package could involve home care, meals on wheels or the provision of equipment, and it will be based on the department's eligibility criteria. The department could then determine, however, that another social services department is in fact the responsible authority. The second department might, however, have different eligibility criteria, which would have led to a different decision. At best, the second department might have provided a different care package; at worst, it might have provided none whatever. 
 The Audit Commission published its report ''Fully Equipped 2002'' earlier this year. In it, the commission recognises that there are differences in eligibility criteria. The report states: 
''The provision of equipment services is subject to people meeting locally-defined eligibility criteria. Once a public authority is satisfied that it is necessary to make arrangements to meet an individual's needs, then there is a duty in law to make provision under the Chronically Sick and Disabled Person's Act 1970 and the NHS and Community Care Act 1990 . . . However, auditors found that some authorities were imposing strict eligibility criteria on community equipment services, or that they were avoiding making the assessment in order to contain costs . . . There is a general view that eligibility criteria are used to exclude people, rather than include them, from receiving equipment services.''
 That applies to other services, too. What happens in those circumstances as regards expenditure that is incurred for services because the first department's eligibility criteria are more generous than those of second department, which must now pick up the cost? Are there circumstances in which the second department can say, ''No, we decline to pick up the bill''? Can that department, which was entitled to conduct the review in the first place, conduct a further 
 review and withdraw the care package that the first department put in place? 
 A similar issue arises with the financial assessments that local authorities are required to make in determining under National Assistance Act provisions whether a charge is to be made. What happens where the charging policy of the department that is served the clause 2 notice gives rise to a higher charge than would the policy of the department that must reimburse it under clause 7(2)(b)? Is it the second department's responsibility to reimburse the individual for the extra amount that it must pay in charges to the first authority—or will the individual just be hard done by and not get the money back? Will the Minister make that clear? 
 Finally on this set of adjustments, what if the responsible social services department is a social services board in Scotland? Under the devolution settlement, there is no obligation to reimburse. Will they be reimbursed? Will the Government use some other mechanism to reimburse social services departments in England? It would surely be unfair if the system of fines resulted in local authorities that were not the responsible authority being unable to recoup costs. Those issues are not addressed in the explanatory notes and certainly not in the clause.

Jacqui Smith: As Opposition Members have said, the clause deals with adjustments between social services authorities. Under sections 21 and 29 of the National Assistance Act 1948, all local councils have a duty to provide residential accommodation and certain other welfare services for people who are ordinarily resident in their area. Although there is no legal definition of ''ordinarily resident'' in the Act, the term is given effect by the actions of local authorities that already operate such a system. Subject to interpretation by the courts, its ordinary and natural meaning is used. The sort of issues that the courts would take into consideration in such cases would be factors such as time, intention and continuity, each of them given a different weight according to context.
 My Department already issues statutory guidance to clarify, when possible, where responsibility lies between social services authorities, so that the scope for disputes is reduced; and nothing in the Bill changes any of that. However, services provided for the welfare of older people under section 45 of the Health Services and Public Health Act 1968, including services in the home and prevention services, as well as those provided under schedule 8 to the National Health Service Act 1977, which covers after-care services such as district nursing and physiotherapy needed for recovery, are not subject to the same criteria of ordinary residence. There is thus no need for a mechanism to resolve disputes on ordinary residence for such community care services. However, the local authority in which the patient is ordinarily resident immediately before admission has the responsibilities set out in part I of the Bill, which may include the provision of any community care service including intermediate care, residential care or domiciliary care. 
 I should like briefly to refer to clause 5 and its relationship to clause 7. Clause 5 makes provision for the Secretary of State or the National Assembly for Wales to determine which local authority should have responsibility for an individual should there be a dispute about his ordinary residence. The clause lays out who should provide services while the dispute is being resolved. The key point is that we want to ensure that individual patients and their carers should not lose necessary services because of disagreements, or even turf wars, between service providers. 
 Disputes can sometimes arise because it is not clear where a patient is ordinarily resident and hence which council is responsible for providing social services. In some cases, it is completely clear where people are ordinarily resident and therefore which council should have responsibility, but not always. For example, a person may have been living away from his home, perhaps with a relative, for a time before going into hospital. In such a case, it would be necessary to consider the details to decide where the person was ordinarily resident, including how permanent the move was, whether he intended to return to his previous address and how long he had been staying with his relative. Local councils are used to making decisions on such cases. In other cases, however, a patient's ordinary residence might change during a hospital stay, perhaps because he and the person with whom he was living had moved house. In that case, his ordinary residence will have changed along with his permanent address. 
 The hon. Member for West Chelmsford said that he was probing to discover the reason for subsection (2). It allows for regulations to be made to provide for what should happen in those circumstances. It confirms that arrangements that currently apply for cases in which ordinary residence is unclear cover all community care services and are formalised. As I suggested, local authorities are currently required to take responsibility in respect of residential accommodation and other services under the National Assistance Act while ordinary residence disputes are resolved, and if the authority that provided the services is found not to be the responsible authority, it will be entitled to reimbursement for its expenditure. 
 I shall return to the issues raised by the hon. Member for Sutton and Cheam in a moment. In the clause, we are simply trying to follow the system through. Hon. Members will find that, in practice, local authorities are used to dealing with residents' disputes in this way and would not be at all surprised by our plans. Under the current system, where one authority provides services but it turns out that another authority is responsible, the first authority is reimbursed. 
 On the point about reimbursement—

Simon Burns: Fines.

Jacqui Smith: Does the hon. Gentleman want to intervene?
Mr. Burns indicated dissent.

Jacqui Smith: I was not quite sure what the hon. Gentleman said, but I have not finished responding to his remarks.
 On the different eligibility criteria, we will set out in regulations which local authority should take interim responsibility, and that authority's eligibility criteria will apply until the second local authority has carried out an assessment. The regulations will also provide specific details about reimbursement levels. The hon. Member for Sutton and Cheam raised some important points about varying criteria. Of course, part of the solution to the issue that he raises lies in the increased emphasis that we are placing, not only through guidance on fairer access to care but on good practice, on ensuring that a person's needs are reassessed, which may mean that their package of care needs to be reassessed, depending on the criteria operated in different authorities, even if responsibility is not being shifted from one authority to another. 
 On the Scottish point, I understand that practice will carry on as now, whereby one local authority will reimburse the other, but I shall get back to the hon. Gentleman on the details of the cross-border arrangements relating to Scotland.

Paul Burstow: Before the Minister makes progress, I want to ask one final question. I raised the question of eligibility, and she kindly indicated that the Government would think about that further and deal with the matter in regulations. Can she also tell us the Government's response to the question of charging? Who would reimburse the individual if they had been charged more by the first authority but would have been charged less by the second authority? Will reimbursement be made by the first or second authority, or from some other source?

Jacqui Smith: That is why I said that the specific amounts of reimbursement would need to be pursued in regulations. Clearly, that issue does not arise with respect to residential accommodation, but we need to assume that the eligibility criteria and the charging criteria of the authority with responsibility for that individual take precedence. The hon. Gentleman is right that there may be differences in the amounts charged for residential care in different areas, which will have an impact on both the individual and the local authority. We need to pursue the specifics on domiciliary care in regulations.
 To return to the points raised by the hon. Member for West Chelmsford, we want to ensure that, in future, regardless of whether an individual's ordinary residence is in dispute, one authority will always take responsibility, at least until the dispute is resolved. That is achieved by subsection (1)(a), as is right. I am sure that no one would want people to wait indefinitely for services while two authorities squabbled over which one of them should pay. 
 There may be some inconvenience for the local authority that must accept a clause 2 notification for a patient who is later discovered to be the responsibility of another authority. However, that inconvenience is relatively small compared with the enormous inconvenience and frustration experienced by an older person who wants to leave hospital and cannot 
 do so, or that caused to the acute trust which both loses out financially and is unable to make use of a hospital bed. The local authority that has accepted the clause 2 notification and is later found not to be the authority responsible will be able to recover any expenditure wrongly incurred under regulations made under subsection (2)(c). It does not seem unreasonable to expect that authority to take on the case of a patient in the interim in the interests of providing the best possible care. That covers the reasoning for paragraphs (a) and (c). 
 There might be cases, as I suggested earlier, in which a patient's ordinary residence changes during the course of his hospital stay—perhaps because his spouse or carer has moved. In that case, regulations under subsection (2)(b) will be used to require the new local authority to take responsibility for the patient. If a person moves home during a hospital stay, we need to ensure that the authority to which he has moved becomes the authority with responsibility for providing the community care services, because that authority will, in future, be responsible for him. It is also the authority with which he will have geographical ties. That is the reasoning behind subsection (2)(b). To remove that subsection, or any element of it, would make much less clear and would prejudice the smooth and efficient working of the discharge process. It could leave older people vulnerable to long delays in hospital while disputes are resolved. I hope that Opposition Members are reassured and that they feel able to withdraw their amendment.

Paul Burstow: I am grateful to the Minister for her response. It would be useful to know whether she will be a position to give more detail on Report about the matters that I raised in speaking to this group of amendments. There are serious question marks over the way in which different local authorities charge and the way in which the criteria would work in respect of these adjustments. They have not been clearly answered, and it would be helpful if she would indicate that there will be an opportunity to deal with them on Report.

Simon Burns: I have listened carefully to the Minister and am grateful for her explanation, which certainly clarified the meaning of subsection (2) and the need for it to remain in the Bill. In the light of her comments, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 7, as amended, ordered to stand part of the Bill.

Clause 8

Paul Burstow: I beg to move amendment No. 79, in
clause 8 page 5, line 36, leave out 'subject to subsection (2).'.

John McWilliam: With this it will be convenient to take the following:
 Amendment No. 80, in 
clause 8, page 5, line 37, at end insert 'by statutory instrument and no such shall be made unless a draft has been laid before and approved by resolution of each House of Parliament.'.
 Amendment No. 81, in 
clause 8, page 5, line 38, leave out subsection (2).
 Amendment No. 13, in 
clause 8, page 6, line 1, leave out subsection (4) and insert— 
 '(4) Any powers to make regulations of this kind referred to in this section shall be exercisable by statutory instrument, and any such instrument shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.'.
 Amendment No. 82, in 
clause 8, page 6, line 1, leave out subsection (4).
 Amendment No. 85, in 
clause 8, page 6, line 2, leave out from 'State' to 'to' in line 3.
 Amendment No. 83, in 
clause 8, page 6, line 4, at end insert— 
 '(5) Any regulations made under this part shall be drawn up in consultation with local authorities.'.
 Amendment No. 84, in 
clause 8, page 6, line 4, at end insert— 
 '(5) The Assembly may make regulations under this Part.'.
 Amendment No. 14, in 
clause 11, page 7, line 9, leave out subsection (5) and insert— 
 '(5) Any powers to make regulations of this kind referred to in this section shall be exercisable by statutory instrument, and any such instrument shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.'.
 I shall address my remarks to amendments Nos. 79 to 85. Their purpose is to address two concerns. First, to improve the parliamentary scrutiny—

John McWilliam: Order. Perhaps I am being unfair to the hon. Gentleman. The amendments cover the whole clause, so we shall deal with this as if it were a clause stand part debate.

Paul Burstow: I am grateful for that, Mr. McWilliam. In that case, I shall stray more widely. The first purpose of the amendments is to improve the parliamentary scrutiny of the many regulations that will be made under the legislation. The second is to ask the Minister whether Wales is to be allowed to do things differently from England when it comes to introducing systems of fines or penalties, or choosing not to do so. During the nearly six years for which I have observed the proceedings of Standing Committees of this House, there has been an increasing tendency for the Government to use primary legislation to introduce measures that increase the power of Ministers to write and rewrite laws through secondary legislation. That limits further opportunities to give those matters detailed scrutiny in this place.
 The Bill, as others have said, is little more than a flimsy framework onto which a number of regulations are to be dangled, like baubles on a Christmas tree. We shall not be able to see what those baubles look like until much later.

Jacqui Smith: They will be sparkling. [Interruption.]

John McWilliam: Order. I am having difficulty hearing the hon. Gentleman, because of the chattering.

Paul Burstow: Thank you, Mr. McWilliam. I was about to say that until the Government reveal the details of those regulations, it will be difficult for us to know during the Committee stage whether we are pursuing the most important issues or asking the illuminating questions that would give the Government the opportunity to reflect and change their minds.
 The Bill provides for the negative resolution procedure, which is the quietest and quickest way of slipping regulations through the House. Given the limited scrutiny that Members of Parliament can give a Bill drafted in that way, it is vital that the regulations—not least those made under clause 7, which will deal with issues on which the Minister was able to respond only partly just now—should be the subject of the affirmative resolution procedure. At least then we would be guaranteed some parliamentary time, albeit in a Committee, to debate those matters. In truth, neither route is a terribly satisfactory means of further parliamentary scrutiny of important regulations that determine what the law will be, because we can say either ''Aye'' or ''No'' to them but we cannot amend them.

Nigel Waterson: I am following the hon. Gentleman's argument closely—and so far, so good. Would he also agree that although we have not yet reached our discussion of the merits of clause 11, the regulation-making powers in that clause are particularly important and significant to the individuals involved, because they extend the application of the whole of part 1 to patients in care homes. That comes under his general argument.

Paul Burstow: The hon. Gentleman is right to be concerned about the Government's intentions under clause 11. I dare say that when we reach it, he and other hon. Members will be seeking to catch the eye of the Chair in order to put questions to the Government. Whether or not it will create further difficulties in terms of where responsibility lies for those penalties, a social services department could find itself being fined for the actions of an independent care home. It seems to stretch yet further the Government's logic, which is rather thin on the ground, about the operation of the Bill.
 When will the draft regulations be available? Will the Minister give us some sense of the timetable today? When will they be published for consultation? When will the final guidance and regulations be in place, and who will be consulted about them? Those questions are important to the poor souls in social services departments and the national health service, who will have the responsibility of translating the worthy words of the Bill into practical reality.

Cheryl Gillan: Does the hon. Gentleman agree that social services departments will be particularly worried because the Audit Commission announced its ratings today, and those that are falling below average, or three star
 authorities that are looking to move to a four star rating—

John McWilliam: Order. The hon. Lady is supposed to address the Chair, not the hon. Gentleman.

Cheryl Gillan: I apologise, Mr. McWilliam—but it is difficult to tear oneself in half between two gentlemen.
 Does the hon. Gentleman agree there will be difficulties for social services, and that the Minister should put their minds at rest by giving us firm dates and a timetable? That would make a great deal of difference, because our social services departments face tremendous pressures to perform.

Paul Burstow: The hon. Lady is right to draw the Committee's attention to concerns about the implementation of the regulations made under the Bill, not least because of local authorities' frequent experiences of dealing with regulations from the Department of Health. For example, the regulations that govern the introduction of so-called free nursing care were published a week or two before the go-live date for that initiative. They had been in draft before that, but because of the consultation, people lived in hope that the regulations would be amended to deal with their concerns. As a result, they had little time before they had to implement the details from 1 October 2001.

Simon Burns: The hon. Gentleman has raised an important point that amplifies the issue that he is putting across. He will remember that the regulations that finally emerged bore little resemblance to the promises made by the Prime Minister and the Secretary of State for Health about free nursing care before polling day in June last year.

Paul Burstow: I shall not go too far down that road, as you might argue that I was straying too far, Mr. McWilliam—but I agree with the hon. Gentleman. On numerous occasions, I have said that what is described in legislation, by Ministers and by the Prime Minister as so-called free nursing care is a cruel hoax that has been pulled on thousands of elderly people. Many of them are still waiting for the payments to come through in the form of reductions in their care home fees.

Andy Burnham: The hon. Gentleman asserted that there had been a cruel hoax. Does he not accept that private nursing homes have withheld the payments? They have not given the funding to the people who should benefit.

Paul Burstow: The hon. Gentleman is right; that was my last point before I gave way to him. We are waiting for regulations that will in future require care homes to publish in more detail the breakdown of their accounts. However, those regulations would in no way oblige the care home to passport the money through to the individual in the form of a reduction in fees, even now. The problem can continue. It might be a little more transparent, but the concerns that the hon. Gentleman and others raised in the Health Committee during its inquiry into delayed discharge have not been adequately answered by those regulations. As I understand it, they are still to be laid and implemented, which is another example of the
 problem of using regulations rather than primary legislation.

Cheryl Gillan: I had a similar problem in my constituency, when a constituent complained that the money had not been passported through to her for the care of her husband. I had understood that investigations were continuing to look into that problem, and that the Department was involved. Does the hon. Gentleman know anything more about that? Will the Minister elaborate on it later?

Paul Burstow: That question, fairly, is directed to the Minister, and I look forward to hearing the outcome of those long-running inquiries. Complaints have been raised by hon. Members from all parties about the issue, and Ministers announced initiatives to deal with it early this year. It would be useful to know the outcome and what sanctions had been imposed on those who have not passed on the money to the elderly and infirm people entitled to receive those contributions for their nursing care.

Andy Burnham: Will the hon. Gentleman give way?

Paul Burstow: I would like to make a little progress, otherwise I will have strayed a long way, and this will go beyond even a clause stand part debate.
 I want to ask about the system that the Bill puts in place and the timing of its implementation, which is also relevant to the clause. Why does the system of fines have to be in place by April 2003? The investment that Ministers talk about starts to arrive only from April 2003, so how can local authorities hope to have commissioned the extra services to secure the capacity needed to minimise delays and avoid the fines?

Meg Munn: Surely the National Health Service and Community Care Act 1990 requires local authorities to find diversions and other services for that. Local authorities have had 10 years to put in place a range of services. I do not understand why that time scale is seen as short.

Paul Burstow: I have two points to make about that. First, the Minister prayed in aid the lack of investment over a large part of that 10-year period as a reason for extra investment now. The problem is that the extra investment does not start to arrive in any quantity—and there might be arguments about whether it is an adequate quantity—until next April. However, I rely upon the evidence that the chief inspector of social services gave to the Select Committee in April this year. We are talking about a relatively recent inquiry based on someone who—
Andy Burnham rose—

Paul Burstow: I will take the hon. Gentleman's intervention in a moment. The chief inspector said:
''the problems which are faced by councils in the South East are the care home capacity and the level of fees.''
 Most of those councils will be reviewing their fee structures and policies. In other parts of the country, lack of capacity or staff is an issue. Many of the care workers in home care services, or care assistants who work in such facilities, are on low wages. They are attracted into other parts of the economy. That bears 
 on local authority commissioning strategy, and how much fees are. In other parts of the country, the range of services under discussion in intermediate care is inadequately developed. People may be going into residential care too quickly. 
 The words of the chief inspector of social services that I quoted were from February. Those fundamental issues are to do with capacity, whether it be in intermediate care, residential care or domiciliary care. It is now only a matter of months since the chief inspector said that. How on earth could the capacity have been built between then and now? That is why I ask the Minister to say why it is necessary for things to be driven forward at such a rate. 
 There is another reason why I ask that question—[Interruption.] I will take an intervention from the hon. Member for Leigh (Andy Burnham) in a moment. In response to a question that I asked about the implementation of the fines on social services for delayed discharge and the cross-charging to the health service, the Minister said: 
''In addition, from April 2004, the NHS will be introducing a new system of financial flows that will ensure that acute trusts do not benefit financially where patients are re-admitted to hospital within a set period.''—[Official Report, 10 December 2002; Vol. 396, c. 306W.]
 Why is it okay for the national health service's equivalent of fines to be implemented a year later? Surely it would be more sensible to adopt the approach that the Minister has so far been advocating in Committee, though a system in which we put in place simultaneously the checks and balances, if you like, of penalties that would prevent inappropriate discharge leading to emergency readmission—

John McWilliam: Order. It is entirely beside the point whether I like the checks and balances.

Paul Burstow: I will take the intervention from the hon. Member for Leigh now.

Andy Burnham: Does the hon. Gentleman agree that some of the capacity problems that he is describing relate not only to the underfunding of social services by the Conservative party—the new-found friend of social services—but to the restriction that that party placed on social services departments to spend 85 per cent. of their budgets in the private sector?

Paul Burstow: Those are entirely fair points about the way in which previous Governments have behaved, and about the inadequacy of the settlements that they made. However, with this Bill we have to address the consequences of the Government's continuation of those policies in the first three to four years of their first Parliament in office. There is also the question of whether, in the light of the advice that the chief inspector gave to the Health Committee, there is adequate capacity to make the Bill work without an undue burden of fines resulting.
 The argument that we should allow another year is further strengthened by the Government's decision to delay the implementation of the single assessment process, which has been shifted to 2004, because social services departments and others were not ready. Surely 
 it would make sense to put in place the single assessment, the fines for emergency readmissions and the fine system as part of one package, rather than piecemeal.

John Baron: I am following the hon. Gentleman's argument, which I support, with interest. Does he agree that if the genuine intention behind the Bill was to create partnership in trying to address a serious issue, one side—the NHS bodies—would give the extra time that the hon. Gentleman is arguing for, to allow extra capacity to be built up, and to think the process through generally, rather than impose the fines as early as April next year?

Paul Burstow: The hon. Gentleman is right to say that that is the burden of my argument. It is based not on my beliefs or my research, but on evidence from officials, which I am sure Ministers were given when they were considering the Bill. It is clear from the chief inspector's published reports that serious capacity constraints stand in the way of the effective implementation of the proposals, and it is a cause for grave concern that Ministers continue to deny that.
 The second issue with which the amendments deal is devolution. They would give the Assembly the authority to opt for a different solution to reflect its different circumstances. Through the regulations, it could write rules to set up a different framework in which penalties and fines could work, and I hope that the Minister will address that possibility too. My colleagues in the Welsh Assembly certainly believe that under the devolution settlement, they are not required slavishly to follow the Secretary of State's view of how to construct the regulations.

Simon Burns: What the hon. Gentleman is saying is fundamental. Do his colleagues in the Welsh Assembly think that they could choose not to impose fines if they did not want to? It seems that the Labour First Minister in Wales does not want to introduce foundation hospitals.

Paul Burstow: I can certainly confirm—

John McWilliam: Order. Foundation hospitals do not occur anywhere in the Bill.

Paul Burstow: I shall deal with the hon. Gentleman's first point, and I hope that that will be in order. From my discussions with colleagues in the Welsh Assembly, it is clear that Welsh Liberal Democrats do not want a delayed discharge fines system to be a burden on social services departments, and we tabled an amendment to reflect that policy intention.

Phyllis Starkey: Is the hon. Gentleman suggesting that his colleagues in Wales would be able to opt out of the fines system only if his amendment were accepted?

Paul Burstow: The intention behind the amendments is to obtain a Government commitment to allow the Welsh to go their own way and seek their own solutions. That is, after all, the fundamental point about devolution. It is not clear how the Bill's powers to make regulations will allow Wales to do something different if it chooses a penalty system. That is why we tabled our amendments, and we hope that the Government will accept them or table their own so
 that Wales can implement measures appropriate to its circumstances. Those are our arguments about regulations and the need for Wales to make decisions for itself.

Simon Burns: I beg to move amendments Nos. 13 and 14—

John McWilliam: Order. The hon. Gentleman can say that he will formally move his amendments later, but the only amendment that has been moved so far is No. 79—although we are hearing the arguments on the others, too. [Interruption.] I do not know whose pager is still switched on, but will they please switch it off?

Simon Burns: Thank you, Mr. McWilliam.
 Amendment No. 79 is similar to others in the group. They deal with the fundamental and age-old problem of Governments using secondary legislation—statutory instruments—to flesh out primary legislation. That has caused us frustration throughout our debates on the Bill, and our complaint is that the Bill is basically a skeleton. There is little fine detail to guide us as to exactly what the Government propose to do if the Bill receives Royal Assent. That is a dangerous and unsatisfactory way in which to debate and enact legislation. Throughout the first part of the Bill, there are powers to make regulations that will give the detail of what the Government plan to do. They appear in clauses 1 and 2, and in the crucial clause 4, which mentions the fines; they too will be introduced by regulation. The Government have indicated what they believe the daily fine will be, both for London and the south-east and beyond, but we do not know what they intend to do about possible increases in the fines. If they intend to increase them from time to time, what mechanisms will be used to achieve that—or will it have to be done by further regulation?

Cheryl Gillan: Does my hon. Friend agree that there is a dangerous creeping tendency in Government to claim that they are moving decisions closer to local communities, whereas in fact, by secondary legislation, they are moving them further up the chain and into the heart of government? They are using vehicles that preclude local scrutiny of Ministers' decisions. They are centralising power, not devolving it.

Simon Burns: My hon. Friend is absolutely right. The Government do more and more through statutory instruments and secondary legislation, and I believe that is because those command far less scrutiny, particularly because most of the time negative resolution procedures apply. As all hon. Members know, that means that more often than not, they are not even debated in Committee. That way, the Government can slip legislation through. The Government may think that that is clever, and it makes their lives easier because legislation is enacted much faster, but I caution them: they are also, paradoxically, blocking off the opportunity for helpful hon. Members to point out in Committee, before it is too late, where they might have got it wrong. It is far easier to correct a mistake before legislation is implemented than to come back to the House to correct it afterwards, when the mess has already been created.

Nigel Waterson: Has my hon. Friend also considered the fact that, as the hon. Member for Cheadle pointed out earlier, this Standing Committee has hardly been conducted in the full glare of media attention—although there might be others to blame for that? That is bad enough, but a short delegated legislation Committee is even less likely to attract attention—from the media or elsewhere.

Simon Burns: Sadly, my hon. Friend is right. It is a dumbing down of the parliamentary processes to rely so heavily on statutory instruments, particularly those subject to the negative resolution procedure. I have a foreboding that—if the Minister is no different from any other Minister in this Government—I can anticipate her speech. The nub of it, which will reject the amendments tabled by the hon. Member for Sutton and Cheam and by me, will be, ''You didn't do it when you were in Government, so I shan't do it now I'm in Government.'' That is not a valid or intellectually honest approach. Life has moved on. In a democracy, situations evolve. It would be equally stupid for me, had the Minister had been a Member of Parliament in 1979 or 1983—

Jacqui Smith: I was at school then.

John McWilliam: Order. Sedentary interventions are always to be deplored, especially when they make me realise how old I am.

Simon Burns: If the Minister had been a Member in 1979 or 1983, it would be rather foolish of me to say that she must therefore now be anti-Europe, want us to come out of Europe, and be in favour of unilateral nuclear disarmament—because life would have moved on for her. In the same way, life has moved on for us.

Cheryl Gillan: The Minister does not want to come out of Europe.

Simon Burns: My hon. Friend may compromise the Minister by exposing her inmost thoughts on that contentious subject. I can think of one or two of my hon. Friends to whom she might like to talk—or, on second thoughts, not.
 Life moves on. The Government are reliant on secondary legislation, but it is damaging the democratic process; it damages our opportunity to scrutinise legislation properly and prevents good, effective, workable legislation.

Cheryl Gillan: I am grateful to my hon. Friend for giving way to me while he is still developing his theme, but does he agree that another alarming development is the hours that Parliament will now sit—

John McWilliam: Order. I can think of lots of subjects that are in order when speaking to the amendment, but the hours that Parliament sits is not one of them.

Cheryl Gillan: I shall try again, Mr. McWilliam. Under the changed parliamentary hours, Committees on secondary legislation will conflict with business in the Chamber and in Westminster Hall. Does my hon. Friend not agree that even if regulations subject to affirmative resolution make it into Committee, fewer Members may be available to attend the Committee and scrutinise that secondary legislation, even for an hour and a half?

Simon Burns: My hon. Friend points out a problem that will emerge next month, but I suspect that we have not fully appreciated its extent. [Interruption.] I am sorry to keep the Minister up—

Jacqui Smith: Boring.

Simon Burns: That was very cruel of the Minister.
 It is unsatisfactory that the primary legislation will be a skeleton, and all the details and the mechanisms by which it will work will be introduced by secondary legislation. We are developing a dangerous precedent, because so much of the work that we do in Standing Committees on primary legislation will be done in darkness. Too often—we have seen it happen in our previous two sittings—the Committee will press a Minister on how something will work, and the answer will be that we do not know. All that we shall see is a subsection saying that regulations will be produced that will do x, y and z.

Cheryl Gillan: Will my hon. Friend give way?

Simon Burns: I shall make a little progress first.
 That is a crazy way to legislate. It is too vague. The power under clauses 1 to 7 to make numerous regulations will be exercised through the negative procedure. Not one will be subject to the affirmative procedure. For instance, subsection (3) states: 
''Regulations under this Part may . . . (a) make different provision for different cases and circumstances''—
 which is totally vague; it continues: 
''(b) make supplementary, consequential, incidental, transitional or saving provision.'' 
That covers everything, across the board, and when it comes to detail, it says nothing whatever—except that the Government can do anything they like. 
 I find it incredible that Labour Members are prepared to accept that. We hear that government must be open, and that the Government should consult, negotiate and ensure that their legislation is relevant, high quality and meets the needs that it aims to meet. Yet we are surrendering our powers of scrutiny and our powers to assist the Government in achieving those aims by giving them blanket powers to produce regulations. 
 What will happen to the regulations made under clause 8? At some point, either in weeks or months, depending on the Minister's timetable, crucial regulations, such as those on fines under clause 4 or those relating to clause 2, will be produced, and it will be x number of days before they are implemented.

Andy Burnham: I am listening to the hon. Gentleman carefully. Am I right in thinking that his real concern stems from the fact that he knows just how weak the Conservative party is in opposition?

Simon Burns: I really did think better of the hon. Gentleman, who is one of the brighter new Labour young Members of Parliament. I would have expected him to come up with a more intellectually coherent and relevant argument. We have avoided making cheap, meaningless party political points, as I am sure Mr. McWilliam will confirm, yet the Minister—[Interruption.] I anticipate the hon. Gentleman's
 career, unless, of course, he continues to make such interventions. Sadly, however, he has fallen into that trap. The issue is more important than to warrant such an intervention. I am sure that when he reflects on it, he will realise that it was not his wisest moment.

John McWilliam: Order. We are talking about the power to make regulations, not about the power to make regulations about political parties.

Simon Burns: As I was saying before that intervention, the clause contains a blanket power, subject to the mechanism of negative procedure, which will minimise opportunities for hon. Members to hold the Government to account and to ensure that bad laws are not slipped through quietly—bad laws that will have an immense impact, not only on the health service and on local authorities, but on the patients and families involved in delayed discharges.
 Regulations that do not deal with mere formalities should be subject to the affirmative procedure, particularly as it would guarantee that they would be debated, although as my hon. Friend the Member for Eastbourne said earlier, it is a short debate, with the disadvantage for some—I suspect, from the Government's point of view, the supreme advantage—that statutory instruments cannot be amended, but only accepted or rejected. We all know, as does any Whip, that no order in the current climate will be rejected unless the Government want it to be, because the Government can use their majority to ensure that Government legislation is passed. We will find that it is a deeply flawed system—

John McWilliam: Order. It is out of order to repeat circular arguments. The hon. Gentleman is doing so.

Simon Burns: I am extremely grateful for that, Mr. McWilliam. I was about to conclude my remarks because I did not want to repeat circular arguments, as I knew that I would fall foul of your strictures.

John Baron: Will my hon. Friend give way?

Simon Burns: No, because I must make progress—and follow your instruction, Mr. McWilliam.
 I hope that the Minister will not dismiss the amendment with the same hackneyed argument that other Ministers have given about what happened under previous Governments. I hope that she will recognise that life has moved on and that the amendment deals with an important issue.

John Baron: I have followed my hon. Friend's line of argument with great interest. The amendment would give those at the sharp end—those that the Bill really affects, such as local authorities, NHS bodies and so forth—an opportunity to further make their points in adapting the legislation. It would give them input to the system and allow them to express their concerns or otherwise on the proper implementation of the Bill, which is what we all want.

Simon Burns: Yes, but I fear that the mechanism for regulations will seriously impede such a process, which would be the right way forward. I hope that the Minister will consider the amendment, because far too many of the issues to be dealt with by regulation are far too important to be slipped through quietly using
 the negative procedure. She owes it to the bodies and individuals affected by the Bill to provide a more positive way to scrutinise the small print of the regulations that she will undoubtedly issue in due course.

Nigel Waterson: I am happy to speak in the debate. I broadly support all the amendments, but I want to speak to amendment No. 13. You rightly upbraided my hon. Friend the Member for West Chelmsford for repeating circular arguments, Mr. McWilliam, and I want to introduce some new circular arguments to the debate.

John McWilliam: Order. I do not even like new circular arguments.

Nigel Waterson: Thank you for that guidance, Mr. McWilliam, but let me at least make one point about circular arguments. I have not served on a single Standing Committee that has considered a Bill where there has not been an argument about what should or should not be in that Bill. In some cases, we are reduced to arguments about angels dancing on the head of a pin, but this Bill is different, and I will briefly explain why. I shall use a seasonal analogy, as it is a Christmas tree of a Bill. When you bring a tree home for the first time in the run-up to Christmas, it is bare and devoid of decoration. The lights and little coloured balls—juggled or not—make the difference, as in this case do the regulations.
 We are in completely new territory. The Government propose to alter completely the relationship—the balance of power, if you like—between the bodies involved, such as the social services departments—

John McWilliam: Order. I apologise to the hon. Gentleman, but I am directed by Mr. Speaker to say that ''you'' refers to me. I have to be neutral, so whether I like it or not is entirely beside the point.

Nigel Waterson: Your neutrality is a great comfort, Mr. McWilliam.
 The Bill will dramatically affect the relationship between the various people involved. The Government are already masters of the law of unintended consequences. They are rushing into a delicate area in an enormous hurry, so why the great rush? The National Audit Office will produce a report in April about bed blocking and delayed discharges. Why not wait for it to produce its findings? In any event, as my right hon. Friend the Member for North-West Hampshire has said more than once, this is an unprecedented attempt to give one public body the right to fine, or obtain money from, another public body. Those changes are far-reaching. 
 I would be prepared to sit down immediately if the Minister were prepared to leap to her feet and give me an assurance that, unlike the Bill, the regulations will contain the magic words ''patient choice''. I have already spoken at length about that vexed subject. It does not seem to be a priority in the Bill and I have a sneaking suspicion that it will not be in the regulations. The Minister is not taking that opportunity. I hope that she will touch on it in her winding-up speech. The regulations will matter 
 enormously to local authorities as well as to NHS trusts. 
 In its briefing on the Bill, in particular on clause 8, the Local Government Association, which represents all strands of political opinion in local government, says: 
''The LGA believes that the level of regulation in the Bill is excessive.''
 It makes the point that necessary regulation should be drawn up in consultation with local authorities and then, rather delphically, says that any regulation should be debated by the appropriate procedure in Parliament. I do not think that anyone would disagree with that. I hope that the Minister will give us firm assurances that bodies such as the LGA, for example the Association of Directors of Social Services, will all be fully consulted on the content of the regulations. 
 The Minister might have touched on this on Tuesday—if she did, I apologise—but it would be helpful to know roughly when the draft regulations will make an appearance. I particularly want to draw attention, as I did in an intervention on the hon. Member for Sutton and Cheam, to clause 11. I do not intend to touch on its merits; I hope that we shall have ample opportunity to do that before the next guillotine falls. It is the most staggering extension of powers to be carried out simply by regulation—by ministerial diktat, in effect—to extend the whole of part 1 of the Bill to NHS patients in care homes. Presumably, by definition, it will extend to all the intermediate care patients currently in the system. That is a major worry and we shall hear much more if and when we reach clause 11 about what the Government have in mind in that regard. 
 There is a series of regulation-making powers in the Bill. I made the point at the outset that that is not unusual in the context of legislation these days. Our Government were, in their time, capable of that too. However, this is a special case—the Bill breaks wholly new ground. Not only will it set at each other's throats bodies that are all meant to be doing their best for the patient, it will have a significant effect on the lives and prospects of individual patients in the system and will also bear financially on the social services authorities that it affects. For all those reasons, the Government should tread cautiously. This is legislation in a hurry, using a sledgehammer to crack a nut. As we have said, things have moved on; a lot of partnership working is taking place that addresses the problem as much as it can be addressed in the absence of adequate resources from central Government. For all those reasons, I support the amendments, particularly amendment No. 13.

Jacqui Smith: I know that it will have brought great reassurance to Labour Members that the Conservatives are championing not only local government but the sovereignty of Parliament. I never was, as the hon. Member for West Chelmsford wrongly alleged, going to use the precedent of the Conservative Government. Nevertheless, it seems to be an interesting turnabout.
 As for the amendments, I touch first on the questions about Wales raised by the hon. Member for Sutton and Cheam. He made greater claims for his amendment's achievements than are justified. Owing to the way that the Bill has been drafted, Wales can already do different things under all of part I, including not commencing any of those sections. I am sure that Liberal Democrat and other members of the National Assembly for Wales will therefore be able to justify their delivery to older and vulnerable people the action necessary to ensure that they are not delayed in hospital, but that would be their responsibility. 
 The hon. Gentleman was referring to clause 8(2) and the restriction that had previously been placed on regulations around clause 6(3), which hon. Members will remember is the power to prevent public authorities having recourse to judicial review before a dispute resolution panel hearing has occurred. We initially felt that clause 6(3) was a devolved matter because it related to issues around the court, and therefore that the regulation-making power should rest with the Secretary of State. However, having considered it further, and having taken advice from across Government, we are now satisfied that it is suitable, on being able to refer a matter to the court before the dispute resolution, or without having gone through it, for the narrow power in clause 6(3) to be devolved. I would therefore be willing to accept amendments Nos. 79 and 81 to remove that subsection. 
 Much of our discussion on the amendments has been about the detail that is to be left to regulations. We have used the power to make regulations rather than spell things out in the Bill because we believe that it is the most effective way to proceed.

Cheryl Gillan: That may be the most effective way in the Minister's view, but how do I, as an ordinary Member of Parliament, have an input into that process? Indeed, does any Member of Parliament have an input? Is it not true that that is the lazy way, and a way of getting the Bill through without scrutiny?

Jacqui Smith: No, as I shall explain. The aim of the Bill is to make the health and social services interface—[Interruption.] If the hon. Member for Chesham and Amersham (Mrs. Gillan) will be patient, I am coming to her point. If she is not happy, she can intervene again.
 The aim of the Bill is to make the interface between health and social services work better. Hon. Members will know that health and social services legislation is often framed in general terms, not because that is what was done by the previous Government but because leaving some details to be fleshed out in secondary legislation helps to enable both services to provide a wider range of services over the years. It has enabled those bodies to remain adaptable. 
 Yes, scrutiny is important—I will come to that—but not many members of the Committee would want to preserve the powers and duties of the health service and social services in aspic. Conservative Members may wish to do that, because they are conservative, 
 but that would mean having to include absolutely every detail in primary legislation. Minor changes, even a small bit of flexibility, and recognising new ways of offering services, would all require a new Bill. I certainly believe that Parliament has an important role, but I am not sure whether introducing primary legislation in that way is the best use of parliamentary time.

Simon Burns: If the Minister's argument is correct, a compromise could surely be reached by taking the secondary legislation under the affirmative resolution procedure so that it was debated.

Jacqui Smith: I am coming to that point, too. I accept that Parliament must scrutinise Government proposals, but that is still the case with regulations, including those taken under the negative resolution procedure.

Simon Burns: Will the Minister give way?

Jacqui Smith: No, because I want to make a little progress. Regulations are routinely considered and consulted on in draft, and that will happen in this case. Regulations made under the negative resolution procedure are routinely laid before Parliament 21 days before they come into force. The Joint Committee on Statutory Instruments scrutinises them and can draw Parliament's attention to anything untoward, including those that exceed the relevant powers or make an unexpected use of them. Following a debate, Parliament can also annul regulations taken under the negative resolution procedure. Ultimately, regulations can be challenged in the courts if they exceed the relevant powers or if the Secretary of State uses his powers irrationally. We should not, therefore, readily accept the idea that regulations are an inappropriate way of dealing with such matters.

Simon Burns: The Minister said that provisions taken under the negative resolution procedure could be debated in the House. Will she tell us how many are debated—5 per cent., 10 per cent. or 20 per cent.?

Jacqui Smith: I do not know the details, but I do know that I have sat opposite the hon. Gentleman in a debate when the Opposition had prayed against regulations that were being taken under the negative resolution procedure. I also know that I have debated other regulations with the hon. Gentleman.

Cheryl Gillan: I am most grateful to the Minister for giving way to me. She has been very generous in that way, but we are trying to make an important point. If she does not know the answer to my hon. Friend's question, will she undertake to write to the Committee before this afternoon's sitting? If she cannot do so—that would be a shame, because our proceedings will end this afternoon—will she undertake to let us know how many regulations over the past two or three years have been examined or annulled under the negative resolution procedure? How often have ordinary Members of Parliament had their say on such regulations? I understand her point about flexibility, but the Government are moving decisions further away from the democratic process, under which elected Members can scrutinise orders that come down from the Executive.

Jacqui Smith: I think that I have outlined how Parliament examines regulations under the negative resolution procedure. [Interruption.] People can read regulations and consider them. As for the regulations introduced under the Bill, I can assure hon. Members that we will consult them fully, and also, for example, local government. Amendment No. 83 is therefore neither necessary nor workable. We will take account of the results of the consultation process as we develop the regulations.

John Baron: Will the Minister give way?

Jacqui Smith: In a moment, but perhaps I can reassure hon. Members first—and this relates to the final point raised by the hon. Member for Sutton and Cheam in our previous discussion. Before our debates on Report, we will provide a summary—as we were asked to do on Tuesday—of what will be included in the regulations. We will also ensure that the regulations are out for consultation by January at the latest.

John Baron: I thank the Minister for giving way; she is being generous. For the sake of clarity, will she outline how hon. Members will be consulted on the regulations? How will we be able to have an input and further debate?

Jacqui Smith: I think that I have already outlined how Parliament scrutinises regulations. Of course hon. Members, like local government bodies and other interested organisations, will be able to examine the regulations when we consult on them. I can undertake to circulate the consultation document to every member of the Committee.

Cheryl Gillan: To every Member of Parliament?

Jacqui Smith: Every Member of Parliament will have access to them anyway, but in case hon. Members have not caught up with them by the time they appear through the usual channels, I undertake to write to every member of this Standing Committee to circulate the consultation document on the regulations.
 I want to be helpful to hon. Members, as I tried to be on Tuesday, about what the regulations will cover. The regulations under clause 1 are required to spell out exactly which services will be covered by the legislation.

John Baron: For the sake of clarification, will the Minister explain how we will be able to have an input into the consultation process? Making regulations available to hon. Members is one thing, but enabling them to contribute to the make-up of the regulations is quite another. How will the Minister ensure that Members of Parliament can have an input into the make-up of the regulations?

Jacqui Smith: I think that we are returning to circular arguments. [Interruption.] The hon. Gentleman has intervened with precisely the same question that he asked me before, so I shall answer it in the same way as I answered it before. I know that the hon. Gentleman is new to Parliament, but I am sure that he can review the processes that I have already outlined for scrutinising regulations made under the negative procedure. As I have already said, I will undertake to ensure that members of the
 Committee receive details of the consultation process on the regulations. I have already said that I will provide hon. Members with a summary of the regulations before Report, so that it will be possible for them to raise any relevant issues on Report.

Cheryl Gillan: Will the Minister give way?

Jacqui Smith: No.

Cheryl Gillan: Just one point?

Jacqui Smith: No, you cannot. I cannot allow you to intervene.

John McWilliam: Order. I am not seeking to intervene.

Jacqui Smith: Sorry, Mr. McWilliam.
 Hon. Members' interventions really are becoming circular, in their crusade to uphold the role of Parliament.

John Baron: Will the Minister give way?

Jacqui Smith: No. I had just begun to try to provide hon. Members with a little more explanation about what will be covered in the regulations.
 We intend clause 1 to apply to acute and geriatric care. Simple definitions in the Bill will not fit with existing laws, so we could be in danger of finding it difficult to change the law in order to ensure that policy is properly applied. 
 Regulations under clauses 2 to 4 are necessary to cover the technicalities of reimbursement. They will enable us to set out what information is required, when and how it should be provided, and the precise details of when delays start and end. That is all clearly suitable for secondary, rather than primary, legislation, and the negative procedure is appropriate because those are matters of detail, which I spelled out on Tuesday, when, as hon. Members will remember, we got down to the nitty gritty of how the process will operate. 
 As we have discussed in significant detail today, regulations under clause 6 will allow us to define the composition of dispute resolution panels, in the interests of ensuring that they can exercise their role fairly and independently. Regulations under clause 7 will allow us to make any adjustments to payments that might be necessary after disputes have been resolved. 
 Although several sets of regulations are to be made, all are appropriate for the negative procedure. None deal with matters for which the affirmative procedure is generally required. For example, they do not amend primary legislation or change the structure of the Bill. The point of the legislation is to make the NHS and local authorities do what they should do already, under existing legislation. Therefore, the negative procedure is perfectly proper. 
 I shall respond to some more of the points made by the hon. Member for Sutton and Cheam on the timing of regulations. He quoted the chief inspector, but what he quoted was obviously said before the announcement in this year's Budget of significant 
 extra investment for social services in the next three years. It was said 15 months before April 2003, when we expect the Bill to come into effect. 
 We discussed the matter at length on Tuesday, and I do not subscribe to the view expressed by some Opposition Members that somehow or other we should remove responsibilities from local government. The logical conclusion of the points that they make is that it cannot be expected to commission suitable care for the people for whom it is responsible. I support local government, and that role should be with social services departments. They can do that job in many cases, and can take responsibility. Far from trying to excuse social services departments from those responsibilities, I believe that the responsibilities rest rightly with them. We need to ensure that they live up to those responsibilities in all cases.

John Baron: In no circumstances whatever are we arguing that social services should not be held responsible. The argument that we have been trying to develop is that they are responsible at the moment, but that the partnership in place should continue to move forward. The Bill will not foster a better working relationship or partnership, because it will drive a Berlin wall between the two services if you introduce the concept of fines. In no circumstances do we suggest that somehow we should take the responsibility away from social services; we say that there should be greater partnership working. I hope that the Minister will take that on board.

John McWilliam: Order. I am not introducing any such concept.

Jacqui Smith: I thank the hon. Gentleman for that intervention. The hon. Member for West Chelmsford has frequently suggested—I suspect that the hon. Member for Billericay has, too—that local authorities can do nothing about care home capacity or commissioning a suitable range of alternatives for people who come out of hospital. However, they can do something, and good local authorities already do. When care homes are given the extra investment that the Government have made available, fees are increased to help to maintain capacity.
 Two things are needed: investment, which the Government are making available, and a commitment to decent commissioning, which many local authorities already give. When that happens, we shall see suitable capacity developed. 
 Councils have had an additional £300 million in building capacity grant over 18 months, from October 2001 to the time at which we suggest that the reimbursement charges should be introduced to increase capacity. We have seen evidence that capacity is on the increase. There are more intensive home care packages, and more intermediate care and community equipment services are provided. I admit that more needs to be done, which is why the Government have put in place significant extra investment and are taking the opportunity to shift resources from the NHS to social services.

Paul Burstow: The Minister is trying her best to obscure the evidence given by the chief inspector of
 social services in February about the serious capacity restrictions. Of course social services departments need to commission services to improve. The problem is that such departments did not know until last Thursday the local government settlement that would provide them with the much-vaunted extra investment that they would then use to provide the services. Commissioning services before that would have been risky, to say the least, as they would not have known precisely what resources would be available to them. They know that now. Is the Minister still telling us that they have enough time to put those new services in place by 1 April next year?

Jacqui Smith: I am telling the hon. Gentleman that with the extra £300 million, social services authorities have already begun to put the extra capacity into place. Good social services authorities have already made a significant difference to the number of delayed discharges. It is interesting to note that there is not a common approach—some authorities have made a much better job of introducing the capacity than others. They should consider that when assessing their performance.
 The hon. Member for Eastbourne summed up my problem with the Opposition's concerns. He said that we should not rush in to try to make improvements. I am sorry, but when people come to my constituency surgery and tell me that they have been stuck in hospital because Conservative-controlled Worcestershire county council has not put in place the necessary alternatives, I do want to rush in, to ensure that the old and vulnerable get the care that they need.

Paul Burstow: I welcome the fact that amendments Nos. 79 and 81 are to be accepted—and I shall seek the Committee's indulgence in pressing amendment No. 80 as well. It deals with negative and affirmative procedures. The Opposition strongly believe that affirmative procedures should be in place—

John McWilliam: Order. I am sorry, I was taking advice just then, but we shall leave things as they are.

Paul Burstow: I hope that I shall be able to press amendment No. 80, because it enables the Committee to test opinion as to whether there should be an affirmative procedure in place to allow at least a modicum of extra scrutiny of the regulations that will deluge out of the Department of Health as a consequence of the Bill. The Minister has not made a convincing case to persuade me to withdraw the amendment, and I urge Committee members to support it so that we can improve the Bill, even a little.

Simon Burns: The Minister has not convinced me, or my hon. Friends, with her arguments. I wish to press amendments Nos. 13 and 14 as well as supporting amendment No. 80. In considering the degree of scrutiny of secondary legislation on health matters, I remind the Minister of the advice given to her colleagues in the Department of Health during the progress of the Care Standards Act 2000. The mess that emanated from the secondary legislation led the Government to do a U-turn in July and reconsider the over-zealous way in which they had introduced secondary legislation to impose care standards.
 Amendment agreed to.

John McWilliam: Order. May I explain that if amendment No. 80 is agreed to, amendment No. 13 will fall.
 Amendment proposed: No. 80, in 
clause 8, page 5, line 37, at end insert 'by statutory instrument and no such shall be made unless a draft has been laid before and approved by resolution of each House of Parliament.'.—[Mr. Burstow.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived. 
 Amendment made: No. 81, in 
clause 8, page 5, line 38, leave out subsection (2).—[Mr. Burstow.]
 Motion made, and Question put, That the clause, as amended, stand part of the Bill:—
The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to. 
 Clause 8, as amended, ordered to stand part of the Bill. 
 It being twenty-five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Sessional Order C relating to Programming (29 October 2002) and the Order of the Committee [10 December 2002], to put forthwith the Questions necessary to dispose of the business to be concluded at that time. 
 Clauses 9 and 10 ordered to stand part of the Bill.

Clause 11 - Power to extend the application of

Amendment proposed, No. 14, in 
clause 11, page 7, line 9, leave out subsection (5) and insert— 
 '(5) Any powers to make regulations of this kind referred to in this section shall be exercisable by statutory instrument, and any such instrument shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.'.—[Mr. Burns.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived. 
 Motion made, and Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 9, Noes 7

Question accordingly agreed to. 
 Clause 11 ordered to stand part of the Bill. 
 Adjourned at twenty-seven minutes past Eleven o'clock till this day at half-past Two o'clock.